doctrine or keep it.

chief justice roberts: we'll hear argument fiis morning in case 22-1219, relentless vers department of commerce. mr. martin oral argument of roman martinez on behalf of the petitioners martinez: mr. chief justice, and may ite the court: for too long, chevron has distthe judicial process and undermined statutory interpretation. uld be overruled for three reasons. first, chevron violates th constitution. ticle iii empowers judges to say what the law is. it requires o interpret federal statutes using their best and independent judgment. chevron undermines that duty. eallocates interpretive agencies, and it forces courts to adopt inferior agency cotions that are issued for political or policy reasons. in doing so, chevron blocks judges from seas faithful agents of congress. it mandates judicial bias an enurages ancy overreach.■wemkeyn

executive power, it threatens vidual liberty. chevron also violates the apa. the moaightforward reading of section 706 requires de novo review of legal questions. ss put constition equal footing, and it required both.endent legal judgment as to as justice scalia wrote, apa's text contemplates that courts, nocies, will authoritatively resolve ambiguities in statute and, third, this court's only justification for chevron is t implied delegation theory, but that theory is a fiction. there'no reason to think that congress intends every ambiguity in egency statute to give agencies an ongoing power to ret and reinterpret federal law in ways that override its best meaning. in this case, the agency misinterpreted the msa to force struggling fishermen to pay up to 20 percent of their annual profits to federal agents. the government says that even if all nine of yoe with us that the agency's construction is worse than ones defer to that construction and uphold their m under chevron.

that's not consistent with the rule of law. if we have the best view of the statute, we should win this case. i welcome the court's questions. justice thomas: mr. martinez, how much deference is in tension wi the judicial role? martinez: i think it's very much in tensio your honor. justice thomas: no. w much would it require? i mean, your argument is problematic.rence is but how do we determine ho deference is too much deference? martinez: i think you've certainly crossed the line when you have a rule that says th we're going to allocate interpretive authorom -- from article iii courts to an agen. and so, when -- when you've got deference that a to that, which is what chevron deference en i think you've -- you've crossed theo) seyou've really done is -- justice thomas: i thk at i'm trying -- what i'm asking is, how do we here the line is? we show deference. you -- there's skidmore deference. martinez: sure. justomas: we are deferential in fact finding, et ra. so i'm just trying to determine if it's not de novo review --

martinez: right. justice thomas: -- without any presumptions or deference, then it's proble marti -- i think deference becomes problematic when it requires a judge to say that the lameans x when reallthe judge thinks the law means y i think skidmore deference is t problematic because it doesn't require that skidmore deference essentially says -- and we would be very comfortable with sor that because the agency has a -- has an important role to play in the process, often the agency has helped draft the statute, the agency hasnoedge of the policy context surrounding the atute and its implementation. of course, courts should pay special ultimately has to bring its pertise to bear in a way that's persuasi. and if the -- the court isn't peuave, if the court thinks that the w ans x even though the agency thinks the law means y, then the court needs to go with the best it does in every other -- chieice berts: well -- martinez: -- area of statutory

or constitutional -- chief justice roberts: -- let's -- martinez: -- interpretation. chief justice roberts: -- let' suppose the statute says the department of tranortion wile martinez: right. chief justice roberts: is th a legal question for the court, or is that a policy question for the agency? martinez: i think that -- they've got to be reasonable. that's a term that courts apply in many situations. martinez: i -- i think that a court looking at that statute would trtoetermine the best meaning of the statute, and the best meani othe statute there would be that -- that the use t term real -- "reasonable" confers upon the agency discretion to choose among certain policy options. now that doesn't mean that the agency can just do whateveit wants because there are limits, and the court has to police th limits. michigan versus epa is a good exampl congress used a broad term like "appropriate" and the question was -- which is similar to eanable," in giving the agency a -- a range of diretion. but, at the same time, when the t ether something isn't ve appropriate, the court said no, th, as a legal matter, the

best interpretation of theor "appropriate" in the context of this statute requires the agency to consider costs. chief justice ro well, what if the statute says that the agency can regulate truck -- truck length for vehicles travel in interstate commerce and there's a question wheth or not interstate commerce -- the t delegation for interstate commerce is satisfied when particu mart circumstances are present. martinez: i -- i think that that would be a case if you're -- if the court were called upon to interpret what -- if the dispute was about whether -- what interstate commee ans, i think that would be a classictiw and i think ually highlights -- because inteta commerce is probably there because of the

constial limitations, it highlights the fact that, ly, the same rules should apply to interpreting constuonal -- chief justice roberts: well, i me -- ma■■"statutes. chief justice roberts: -- you could imagine -- you could imagine situations where the inrstate commerce determination is peculiarly fact-bound, you owtrucks transferring loads and -- at transfer points on the border. is that in interstate commerce r ch one or not? and isn't the policy judgment of the agency pertinent in that situation? mainez: i think, certainly, the policy judgment of the agency is -- is pertinent in determining sort othfacts because the agency might be on the ground and understaninthe'sn important legal component to that question, tt any other context, like, for example, if you we ierpreting the■' constitution, i think the court would -- would quite reasonabl think it's its own job to quirement of interstateional commerce and would -- would say -- would give it its best meaning. and i think -- justice kagan: well, let me give you -- martinez: -- the same approach -- justice kagan: -a w more examples along the same lines, mr. martinez. is a new product designed to promote healy olesterol levels a dietary supplement or a drug? martinez: sorry. can you givehaone more time? justice kagan: a new product designed to promote healthy cholesterol levels, is it a dietary supplement -- that's a statutory term -- martinez: ok. juste gan: -- or a drug? martinez: i -- i think it would depend on othe -- the original understanding of the te othat statute in -- read in context.

justice kagan: you -- you want the -- martinez: ani ink that's a -- a gal question for a court. justice kagan: -- you think that thcot should determine whether this new product is a dietary supplement or a drug without giving deference to the agcy, where it is not clear from the text of the statute or from using any tratial17 methods of statutory interpretation whether, in fact, the new product is a dietary supplement or a drug? justice kagan: you want the courts to decide that? martinez: justice kagan, i think with respect to that question or any other of the -- a legal question, i think what t crt would do, there -- there are going to be hard questions, but i think the court would bring all the traditional tools of construction to bear -- justice kagan: they do that ---. they -- you know, we have made clear all the traditiol ols, if you can find an answer, that is the ansr. so the court is very rarely in e situation in which you're talking where it thinks the law ans x and instead it says y.

if it thinks it means x, under chevron, as we've understood it anma clear and reigned it in a little bit over these last f years, it's supposed to say x. but sometimes law runs out. sometimes there's a gap.gein ambiguity. and i -- i don't know. in that case, i would rather have people at hhs telling me whether this new product was a dietary supplement or a drug. martinez: so, youron, i think a couple things. first of alli n't think chevron is a doctrine that only applies to tiereer 50/50 scenarios. it's never been uerood that way. you know, juicscalia in his famous article in 1989 -- justice kagan: it's not a tie-breaker. there are just some times where yolook at a statute and the most honest reading is that there's -- there's -- there's a gap the martinez: but -- justice kagan: -- because of the limits of language, because of the limits of ouab

and so whoil that gap? martinez: but i -- i guess what i would sort of push back on is i don't think there'a gap if the court looks at the statute it's a really close statute. fifty-two percent likely, i think you know, i have 52 percent confidence that x is ght -- justice kagan: i'll give you -- martinez: -- 48 peenlikely -- justice kagan: -- i'll give you another one, mr. martiz. dohee al cases. martinez: right. justice kagan: tsere -- these are prototypical chevron cases. martinez: bu-- justice kagan: does the term "power production capacity" odc power that's produced by a solar panel? martinez: i think same answer as thfit hypothetical. but let me try to -- leme try to sort of give you a different framework for thinking abt this problem. let's imagine that that statute came to cot before an agency d even acted in the first place. what would a court do? would a court look at the statute -- a statutory term like that that's a hard -- presents a hard interpretive question and say: well, this is hard, it's sort of 52/48, it's oibe able to decide this. i think the court would go with the best interpretation. justice kagan: the -- the -- the

-- the court might -- the court in that case have to make a choice. but, you see, here, the court can ou know, the best option is to listen carefully and to deferf 's reasonable and if it's consistent with everythinghawe know that congress has said, to defer to people who actuall things about these things -- rtinez: but -- justice kagan: -- to -- you know, to people whrstand the way particular questions fit within a broader statutory and regulatory scheme, to op who have understanding of the pocies and of the facts that led to this. ll give you a third example. martinez: can i respond? justice ga and this will be my last one, mr. martinez, and 's going to be fairest one because it's going to be one you know about, which is chevron. as a stationarce in the clean air act, does it refer to whole plants or to each pollution-emitting device within the plant? martinez: we think that the decision in chevron was -- reflected the best teretation with much respect to justice gorsuch's th's

epa. we think that that was the best interpretation. but -- but can i just go back and i think what you described earlier about listening to the agency and taking intoccnt all those things, our -- our rule would allow that. that's skidmore. i think the only difference betweeourule and -- and the skid- -- what -- the skidmore sort of approach and the chevron approach is thatft listening all the thin tt you said, if the court isn't persuaded by the agency thathagency's interpretation is correct, chevron would say you still have to go with the agency. amic thing. juste sotomayor: but why not? meaning i -- i think alle play in disagreement is around the words that suggested if there were two plausible meanings, you went with the agency ang. i think we've gone far beyond that. it has assuming -- you -- you make an assumption that there is a bt answer. i don't know how you can say there's a best answer when justices of this court routinely digree and we routinely

disagree at 5/4. is the best answer simply a majority answer? i don't think so. martinez: but, your honor, if -, when i dissent, think the others got it wrong. aughter] juste tomayor: and they often do. [laughter] justice sotomayor: but putting that aside -- but putting that aside, in thossiations, there are two plausible -- not nearly plausible. there are o st answers. d e question is who makes the choice or helps you make t choice. anif the court can -- can disagree reasonably and comes to thatiereaker point, and it could be 51/49, it could be /53, if it's that close, why shouldn't the person with all of the qualities you spoke about, the entity wit qualities, expertise, experience, on-the-ground exutn, knowledge of consequences, why shouldn' deference be given to that entity?

mainez: justice sotomayor, i think your explanation of ambiguity just now just proves the problem with chevron because i think what you said is that whenever there's a ca statutory case in which the th one another, that --sagree that's essentsaying the statute is ambiguous because reasonable people can disagree. justice kagan: that's what nobody believes -- martinez: well -- justice kagan: -- about chevron, mr. martinez. as we' dcribed it, if you -- you work hard to figure out ad's difficult. oh, there are two interpretations. ohyoknow, not everybody agrees with this in three seconds flat. you don't say that. you do everything you do, look at theex look at legislative history if you believe in legislative hior look at context. look at every tool you can, and still there are places where we don't know whether this drugs

a -- is a -- is a -- etr this product is a drug or a dietary supplement, and it's best to defer to people who do know,hoave had long experience on the ground, who have seen a thousa othese kinds of situations. and, you know, judges should know what they don't know. atjustice kagan. but, with -- with all due respect, i -- i think i understood justice sotomayor to be saying that whenever judge -- justices of this court disagree about the best meaning of the statute, becobviously, everyone on the court is reasonthathows that there's an ambiguity. if that'the test, which i think was the implication of the question, then that can't be wrong. that's much broader than -- justice sotomayor: that wasn't martinez: -- step one. justice sotomayor: -- my implication. my implication was that using all the statutory tools, you can still come up, using them in good faith, using them, you can still come up with no an- martinez: well, i think -- justice sotomayor: -- with no clear answer. martinez: -- i -- i think you can can co uwith no clear answer because some -- justice sotoyo or no best answer. martinez: -- because some statutes are hard. but i think yoca a best answer, and -- and the reason i think that is because -- justice sotomayor: best only because a majority agrees? justckson: but --

martinez: no, no, because --■-e interpretive question posed to you without the agency having acted, i don't ink you would say there's no answer here. i think you woulchse the best answer. justice gorsuch: i mean, mr. martinez -- justice jackson: but, mr martinez -- justice gorsuch:- esi'm struggling to understand what -- what -- what'take here given the questions because, as i understand justice kagan's hypotheticals, which are -- are hard o tt e option would be to say it's ambiguous and, therefor t agency always wins. that -- that's what i understood chevron to mean at least coming in here today. anhewould be to listen carefully to both sides and provide special weight under skidmore to a coequal branch o government's viewe would do anyway, and that they ulhave -- have -- be considered great weight in arriving at thbe court would do if -- if there were no interpretiveriiples advanced by the ecive branch, if there hadn't been

some sort of rule or adjudicati. is tha--s that correct? martinez: i -- i think that' correct. ani think the difference between the skidmore approach that youuslaid out and the chevron approach is just, at the end of the day, once you've considered all the expertise and all the information the agency has to bear -- wh-- is the judge persuaded or not persuaded? justice gorsuch: is the judge persuaded at the end of the day, with proper deference given to a couabranch of government, or does the judge abdicate that responsibility and say automatically whatever the agcy says wins? martinez: right, even -- even if the judge is notersuaded. justice jackson: but, mr. martinez -- justice gorsuch: and then -- and then -- justice jackson: -- doesn't that -- justice gorsuch: -- and then if i might just -just finish up, difference of that? it seemso that in the first case, when -- when a judge says here's e law, it's settled, we're done, rit?

it can be appealed, but at the end of the day, if the supreme court of thenid states upholds that interpretation, we're finished. whereas, under the chevron approach, e finished? martinez: no. justice gorsuch: what happens? martinez: i think the agency can overlehat the court said. the agency can overrule what itself said. thk that's a very strange thing, that in every other aa of statutory interpretation, we understand the law to have oneax meaning, but chevron by design creates this world in which the agency is -- is -- because the's this zone of discretion, the -- the agency and ambiguity, the agency can kind of flip-flop and then force crtto flip-flop with them.■ justice gorsuch: and i'm struck on that score by the brand x case, which involved broadband, which this court said, okay, agency, you automatically win with respect to one interpretation of the bush adminiraon, i believe it was, and then, of course, the next administration came back and proposed an opposite rule. martinez: right. justice gorsuch: and then the next administration came back and flippeitack closer to the first. and as i understand it, the present administration is thinngbout going back to where --

martinez: that's -- that -- that's exactly right. justice gorsuch: -- erwe started. martinez: that's exactlrit, justice gorsuch, and i think it -- it plays up t rl problem. chevron really is a reliance-destroying doctrine. imagin yd ti and you're trying to figure out what the lais. you should be able to rely on the bestntpretation of the law and not have to, you know, check the -- the c.f.r. every couple years to see if the law has somehow changed, even justice gorsuch: and that's the delta between skidmore and chevron? rtinez: i think -- i think that's right. mean, skidmore, i think, would allow for -- for courts to give meaningful weight and consideration to -- to persuasive opinions by agencies. the only thing skidmore doesn't do is require a court to give up its -- its interpretive -- ultimate interpreveay and defer to an interpretation that is not persuasive. justice gorsuch: thank you. justice jackson: mr. martinez, what -- what i'm stuck on is what seems to be an assumption question posed with respect to interpreting -- interpreting a statute is a legal one.

i see evn as doing the very important work of helping courts stay awa policymaking, and so i -- i'd like for you to sort of tf it through that lens and help me understand why, if we do away with chevron's framework, we won't have a oblem of courts actually making a policy decision. ustice kagan gave you a number of examples, and i think the reason why those ex are hard or why they're ambiguous or whatever is becaus abottom, they're not asking legal questions; they're asking policy questions. how is i, you know, stationary source is to be defined? that's not really a legal question.reonle ways of interprg that. and at the ethe day, i think the way i've been thinking about chevron is congress has given that policy choice to the agency.d ccern is that if we take away something like evron, the court will then suddenly become a policymaker by majority rule or notmang

policy determinations. so how c wavoid that? martinez: so we agree, obviously, that -- that courts should not be in the business of pocymaking. and i think the whole enterpse of statutory interpretation, en properly understood, is -- is designed to take courts out of policymaking becauswh the court is trying to do is -- is act as a faithful agent of what core has done and find the best -- justice jackson: but isn't that -- martinez: -- interpretation. justice jackson: -- isn't that what chevron does? i mean, isn't chevron, step one, even in this very case, asking the question, one, has congress dehat policy determination? so questionether or not monitors on the boats have to be paid for by the owner of the boat. i see that as a policy question. congress could have said yes or no. there's nothing about law al inherently in the question of should the monitors on the boa be paid for by the owners or the government. so step one is has congress in the statute answered that question. when we say no, everybody agrees

that's not in the statute, then we say the agenccamake that determinatioong as they do so in a reasonable way. so, for example, here, the question is whether or not monitors on the bos ve to be paid for by the owner of the boat. i see that as a policy question. congress could hid yes or no. there's nothing about law really inheren the question of should the monitors on the boats be paid fohe owners or the government. so step one is has congress in the statute answered that question. when we say no, everybody agre at's not in the statute, then we say the agency can mat determination so long as they do so in a reasonable way. and the -- arts sort of police the boundaries of reasonableness, but whether or not the rs are paid for is not really a legal question.on

of whether or not the law allows ency to -- to force the monitors to be paid for by private indis i agree with you that whenn. congress -- justice jackson: b i't that the same question as to whether or- isn't that just another way of saying, can this policymination be made by the agency? martinez: no, i don't think so. k the difference is when the -- when the -- when the policymaker, whether it's congress or thcy, is sitting there and trying to figure out, like, what tt policy is, would the world be a better place if industry has to pay for these monitors or not, that's absolutely a policy question. justice jackson: ok. so that's the question -- martinez: but -- but -- juice jackson: -- right? martinez: no, because, when it comes to a court, the court is not figuring out what the be thing for the world is. the court is figuring out, well, what did congress actually want here. it'-- justice jackson: but i guess i'm afraid that the courrely is figuring out what the best thing in the world is ife martinez: but -- but -- justice jackson: -- look at it rough your lens, right, because, if the answer to the questi i you know, should -- should they pay fo the agency has a view, and unless we're deferring to that view, i don't see why we aren't overriding the -- ency's cyio

that the court should be answerg not should agency -- should industry pay for the monitors. the question that the court should be answering , d congress require or allow agent -- industry to be forced to pay for the monitors? and that's a very different question. that's the different between law and policymaki. and i think the whole assumption and the whole understanding statutory interpretation under this court's cases is there'a difference between law and policymaking. judges are there not to exercise force or will. they're there to exercise judgment. 're -- they're serving as neutral umpires. they're not players on the field. justice jackson: a rht. so how does that -- ■2justice barrett: mr. martinez- justice jackn:- play out under your interpretation -- so, here, what -- whats e question we're supposed to be answer martinez: the question you're supposed to be answering is,id -- does this statute require -- ngress required -- either required the -- the industry, or has it given the agency the authorityo ke that decision? and i don't think -- i think that is a legal -- both of those versions oth question are legal questions, and the answer is no. justice barrett: mr. martinez, can asyou a question about the line between law and policy? and i want to ask you in the

coexof one of justice kagan's examples, the dietary suppleme odrug. where is the line between something that would be then subject to arbitrary and capriciousevw and something that's a question of law? because i'm just wondering whetr rumit be something that's a question of statutory interpretation in the contexof the statute, but which category any one thing fell imit a question of policy for the agency. rtinez: right. i -- justice barrett: is that possible? martinez: -- i -- i think that's rit. i think that would be more of a -- of a, you know, applicaon of law to fact or a factual eson. but i think the core question of, like, you knowwhat i meaning of dietary supplement, d i forget what the other alternative was, those aal questions. particular cholesterol-reducinge drug fell -- martinez: righ justice barrett: -- in one categothe other, i mean, you know -- martinez: that -- that would b a -- justice barrett: -- presumably, atepends on how does this function? what is the mechanism by whi t's right. but i think it's -- i do think it is important to make -- retain the sort of legal component of that question and -- and make sure that e urts have authority over that legal component.

justice barrett: i want to ask you meing about your article iii argument too. you know, ste thomas asked you what the line is. and, you know, courts all of the time make judgments about whether things are reasonable. but i -- i don't understand you toe tng like whether something -- that an agency could tked with deciding what was the most feasible, most useful, mos reasonable. well, courts could do that too. so is that a delegation of jucial power that would offend article iii in your view, to giveho kinds of -- martinez: no, i think -- justice barrett: -- decisions to an agency? martinez: -- i think the way think about those kinds of -- of statutory prns would be that the best interpretation of the statute, giv nate of the word "reasonable" in context, is to ca rae of discretion on the agency. and so i thiourt in that case -- if -- if the agency is orang within the range of discretion, that's bitrary and capricious review. if the agency is sort of operating at the edges, you have to figure out where guardrails are. at's the legal question. so, if the -- if the statute says, you know, the agency can pick red, blue, or green, then the choice among those three ons is for the agenc

but, if you have a legal question like, oh, does pink count asedthat's a legal question. chief justice s: thank you, mr. martinez.much of an acn on the ground is this? i saw some study that said we ven't relied on chevron for 14 years. and judge kethdghas written -- he's been a judge for 10 yes. he's never invoked chevron step two. u ow, judges are used to deciding things, and when they get around to doing it, they tend to think what they've come up with is not only the best answer, but it's the only answer. [laughter] often this comes up? martinez: i think it comes up a lot, your honor. and this court hasn't reliedn chevron since 2016, but the lowecots still have to apply it. and i think these two cases, the -- the two that you're going to hear this morning, sorofhow what happens when -- when courts are plng this doctrine because they're -- they're esstily getting to a point where they don't really have to figure out the best

answer and they can just -- you know, instead of asking what does the statute mean, they can ask dierent threshold question, which is, is this statute ambiguous enough that -c let the agency do the work for us? chief justicrorts: thank you. justice thomas? justice alito? justice it mr. martinez, would you agree that one of the reasons why chrowas originlyo popular was concern that judges were long their policy views, -- to -- to influence their interptation othe statn? martinez: yes. justice alito: why was that fear unfode why do you think now that the fear was unfounded? martinez: well, i think three things. first of all, i think thfe has -- it's reasonable to think the fear has diminisheov time, regardless of what it was then, in large pt e to the very salutary developments in the way

that this court and the lower cots generally now think about statutory construction. in the o ds, there was a lot of reliance on legislative story and on sort of more free-form analysis that i think made it easier f picy considerations to infect the judicial decision-making process. but this court has now made clear th, u know, really, we should be text-focused, en tcon. so i think that is one difference.82 i think another difference is courts now have become more appreciative of the fa tt we're not just talking about, you know, judicial -- rus , like, judicially made common law about how to intpr statutes. we have the apa here. justice al was a big defender of chevron in its original incarnation but, over timeca to realize that the apa had text that actually bore on this question. and i think, when you're enforcing that text, you ce the same place as our article iii argument, which is that courts have to exeis independent judgment. justice alito:o u think that the canons of interpretation olth we have in our statutory interpretation toolkit are kehe enigma machine and so we have these statutes and

they're sort of written in code and we run thethugh the enigma machine and, abra cadabra, we have the best inrptation? do you really think a'ho it works? mainez: i -- i think that what this court does with respect to the normal canons of construction is it's used the -- it's -- it's generated those canons as rough rus thumb to help guide the interpretive process because, if the court believes that the canons best approximate the best original meaning of the statute, especially -- and then there's someans that -- that sort of are not purely textual canons but that sort of are informed by nstitutional -- foundational constitutional values. i think chevron's very different from that becaus wh chevron, you're doing something -- you're not trying to find the best interpretation anymore. you're, in fact, agreeing that you have to impose the not-best interpretation because you have to defer. and so, unlike all the other no, chevron is the only one that says to courts, you can

stop doing your normal interpretive function and we're going to allocate that interpretive function outside of article iii. justice alito: thank you. chief justice robes: justice sotomayor? justice sotomayor: i counted over, i thin--ot i -- the solicitor general or someone has given aist of 77 cases in which the court has used the chevron approach and interpreted what the law was. your overruling chroputs a question to all those 77 cases. martinez: no, your honor, i think is it's stare decisis now? rtez: right. so -- justice sotomayor: until the agency does something else? and then peoe n come back because it's not stare decisis anymore? martinez: so i think, with t to the effects of -- of applying normal rules of construction here instead of chevron, i'd say two things. rst of all, the 70 holdings or whatever, the bottom-lin holdings in those cases would get stare desi so they would not be undermined.

so there's cvulsive change of the law with respect to that. justice sotoyo i don't understand how that happens. once you have a new approach, i'm not sure. martinez: i -- justicmayor: but let me move on to the second part of my question, icis the cases that come to the court are y e ye we've barely referenced chevron. and do you know what the breakup is? how often have we consistentlyhe cases? martinez: in -- in the cases since 20? justice sotomayor: yes. rtez: i -- i don't know the track record on it, your honor. juice sotomayor: i know, it's interesting. mainez: but i will say, i mean, there -- there's some prominent -- justice sotomayor: but -- but putting th ade where we disagree, do you suggest that oudigreement was based on ignoring of chevron or us doing exactlwh you say we should be doing, which is to say this is outside the bounds of reasonableness or around the gudrails because you're going outside of plausible -- martinez: i -- justice sotomayor: -- of reasonable interpretation? martinez: -- i think the court

in casesikthe american hospital case or the digital realty case, which i think are two really good recent examples, e court unanimously overturns the lower court decisionecse it does exactly the right thing. it does all the cat step one and it -- and it essentially sa, ke, the statute is clear. but i think what those 9-0 decisions show is how confusing and unworkable chevron is e the lower courts, you know, purported to do or di't supposed to do and they came to the opposite conclusot necessarily bethey thought that -- that your intation wasn't the best but rather because it thought that the statute was ambigus ough that it required deference. and so it's like a threshold -- justice sotomayor:ounsel, that judgment is inherent in every question. mean, that -- that kind of problem is just a part not just of judging but of decision-making, period, of life. and so it's not clear to me that the facthathere may be some ambiguity about what -- how much bi t justice thomas asked, it doesn't

take away from the basic pmi of chevron, which is a reasonable interpretation within the bounds of -- of comm statutory inrptation should be given deference. martinez: right. bui think the ambiguity trigger introduces a whole kin of threshold question that's ry hard to apply neutrally. i mean, you have great judges, judge kethledge, i tnkwas referenced. he doesn't -- he ner und a case that required him to go past step on just silberman, another great judge, sd at in most cases he thought the statute was ambiguous. and if there's that mh disagreement, then tnk that's a sign that chevron really isn't workable. and this court has tried to rein in chevron in numero ws, but i think that what all of those efforts show is that youof need a secret decoder ring to figure out what the law means under this court's approach. you have to do step zero. you have to apply need. th you have to do a robust step one inquiry, taking into account footnote 9 and taking into account, you owhow much ambiguity is needed. in this -- in e c. circuit, you have to do step one

and a half, where you haveo figure out whether the agency recognized that the statute was ambiguous. under kisor, there's maybe a step three that says you turn off deference when the agency's operating ouof its area of expertise. and then overlying all that you've got the m■6■m q and so i think, if -- if -- if that'ki of what -- justice sotomayor: well, that's the court's eation. martinez: right. but it's the u's creation because it's trying to solve the fundamen. i's taking interpretive authority that belongs to courts and it's giving it to agencies.n whistles are efforts to kind of claw it back to address the symptoms, but i init's time for the court to address the disease, the underinproblem, which is cvr itself. chief justice robe j kaga justice kagan: mr. martinez, i want you to think of this from congress's perspective. so i was thinking what is the next big piece of leslion on the horizon and who knows, don't have a crystal ball, but i'm going to say -- i'm going guess that it's artificial intelligence. so let's imagine congress enact

an articl intelligence bill and it has all kinds of delegations, maybe it creates an agency for the purpose or mae it uses existing agencies and it has all kinds of delegatnso that agency or agencs out how to regulate artificial intelligence so that this nation can capture th--he -- the opportunities but also meet the and then, just by the nature of things and especially the nature of the subject, there are going to be all kinds of places where, although there's not an explicit delegation, congress has in effect left a gap. it has created an ambiguity. and what congress is thinking is, wwant courts to fill that gap, or do we want an agcy to fill that gap? when the normal techniques of legal interptaon have run out, on the matter of artificial intelligence, what does congress want, mrmainez? martinez: i think congress wants

courts to interpret the best inrpretation of their -- justice kagan: congress doesn't know -- kagan: -- apply the best interpretation -- justice kagan: -- what that answer means. ngress knows that there are going to be gaps because congress can hardly see a week in the future withesct to this subject, let alone a year or a decade in the futur and congress knows that there are going to be things that it writes that it's just not going to be clear how this will apply or what it will mean with respect to countless factual situations that this country will have to address. does the congress want ts court to decide those questions, policy-laden questions, of artificial intelligee? martinez: i -- i don't think congress wants the court to do policy. i incongress wants the court which is interpret the law and gure -- and apply the best understanding of the law. and i thk at the implication of your question is that this is some sorofntentional delegation by congress that chevron deference is- this implicit delegat■%ion.

but i -- i don't think that' right. i think many people, including a rynsightful article that -- that you wrote 20 years ago, make clear that this is fictional. is is delegation of a fiction. justice kagan: fictional means -- is like academic speak for presumed. we are indeed presuming congressional inte the congressional intent, you know, the -- the delegation that's not explicit on the face of this statute, b wt we're thinking is congress knows things about different institutions, about what they know, about wh ty're competent with respect to, and■t and lower courts are not competent with respect to■n deciding all the questions aut ai that are going to come up in the future and what congress wants, we presume, is for peopleho actually know about ai to decide those questions. and also, those same people who knowbo ai are people who, to some degree in some way, are accountable to the political process. they have constituencies. they have fact-finding abilities. they are obligatedo consult with people. they report to a president, who needs to be elecd.

in all kinds of ways, both with -- with respect to expertise and with respect to their connections to the public and to otr licymaking entities, ose are the people congress wants to decide questionabt we don't evennowhat the questions arabt ai, let alone the answers to them, we martinez: justice kagan, i thin iwe're trying to figure out what the -- what the reasonable thing to infer that coress has presumed, i think the far more reasonable presumptioanthe one that's most consistent with our constitutional structure is that congress is going psume that courts are going to do law and not policy, they'reoing to pick the best interpretation and enforce the best interpretation as to this statute in the exact same w tt they would do it with respect to any other -- any other statute. and i this think case actuly -- you know, ai is a trickier example -- 19 example. i mean, this case, you know, whether it's -- it -- it was a correct interptaon or not a correct interpretation of chevron is really not the issue that we' diding here.

the issuw're deciding here is more like that, is more like the countless policy issues that are going to confront this coury in the years and decades ahead. will courts be abltoecide these issues as to are completely disconnected from the policy pce, from the political process, and, you know, that just don't have any expertise and -- and experience an area, or are people in agencies going to do that? martinez: i -- justice kagan: that's what this case is about. martinez: -- i think constitutional answer is that congress nee tset the rules with respect to ai. enes, but once the law is written and the interpretive function has begun, then that job is -- is for the courts. and i think this case actually really is a good emp because i think the problem with chevron is that, like, no one really -- me, i'm curious to see what the solicitor general will say outhis, but does anyone really think that congress was esuming that the agency would get to decide the question of

o ys for the monitors? justice kagan: ok. ha one last question. do you think that congress could codify -- codify chevron martinez: i -- i don't think so because i think that -- that a statute that codifs evron would say, essentially, that the interpretive ahoty has been reallocated from the court to the agency. i think that -- justice kagan: congress -- martinez: -- interpretive authority -- justice kagan: -- cannot decide that in cases er a the statutory tools have been used and there remains a gap or an ambiguity, congress could not decide that it wants people who know somethi about something to decide the questions that wille ft over?÷ martinez: i -- i think that gives away and -- and would -- would take away from courts and give to agencies core judicial interpretive authority i don't think congress could do that in the same way that congress couldn't tell the president how to exercise e to power or the pardon power, it can't tell courts how to do interpretation and der to someone else. justice kagan: thank you. ief justice roberts: justice gorsuch? ste gorsuch: do we have to decide that constitutional

question? martinez: i think it makes sense to decide the constitution question. i think you could -- justice gorsuch: that wasn't -- do we have to? martinezi ink you could resolve this case under the apa, and we would certainly welcome an -- an interpretation of the apa atomes out our way, especially if it's informed b constitutional avoidance principles that i think have a t of salience n urrgument suggest or depend upon the idea that judges should make or decide policy questions about ai ornything else? martinez: no. we -- we a hundred percent agree that judges should not do policy. jt think that they should do law. and that's in -- chevrois about legal questions. justice gorsuch: then there was some question about past decisions, and as u inted out, this court's moved away from using legislative history to some degree in favor of tex'n our interpretive approaches too without congress's intervention, for example, in sovereig immunity contexts,etning to the clear statement rule that

had preexisted this court's jurisprudee r 200 years, and then we wandered off into ative n ste. we had to deal with the question what to do with those precedents, and our answer was to leavehealone from -- from those anen martinez: right. justice gorsuch: -- call tm. are you asking us -to do anything different when it comes to chevron? martinez: no, and if i could just explain what -- how i think the world would look with respect to the old cases. i think stare decisis would apply to the holdings of those old cases. i don't think that -- at anything would change. you know, stationary src would still mean what it meant when -- when the court issued that bottom-lierpretation. and so i don't think that this would -- a ruling in favor of our sideou -- would require or eaiovtu i think what we really care out is prospectively, both with respect to the fishin regulation here but also with respect to other cases that come forward to the courts,akg sure that courts are the ones doing thinrpreting and not agencies. justice gorsuch:ha you.

chief justice roberts: justice kavanaugh? justice kavanaugh: several questions. rsof all, on skidmore, there was reference to skidmore deference, and i guess i don't think that's the right term that it's respect or pay attention to, bui ink, if we throw the term "deference" into skidmore deference, we're going to walk tonother problem -- martinez: some -- justickanaugh: -- like the one we have with chevron deference. martinez: some might say "deference" is ambiguous. [laughter]at -- -- that it's imprece. i think the better way -- i think oftentimes, when people say "deference," what they m is that if you think the answer is x, you should defer to i don't think -- i tnk absolutely that that would be inappropriskmo deference" because i think it -- it runthrisk of -- of giving that implication. i think that, relywe're talking about very serious consideration of the points that the agency mesbut, ultimately, you have to be persuaded. and if you're persuaded, then at means that you've concluded that the agency has the best

interpretation and then you just ply the normal rules. justice kavanaugh: right i thought skidmore was about the power to persuade,othe power to control. martinez: exactly. justice kavaug yeah. martinez: we -- i agree with that. justice vaugh: ok. on the constitutional issue that justicgouch and justice kagan were raising, you have lots of arguments here, and mr. clement does too, r erruling chevron without reaching the constitutional issue. so i guess why -- why wod reach it? if -- if we agedith you on overruling chevron on other grounds, i don't see the need to justickan raised about congress passing a chevr-t gime. martinez: i think three thgs on that. like i said earlier, we would certainly welcome overruling chevron, especially dethe apa and especially if informed by constitutional avoidanc principles. but i think there are three reasons why you should consider going bendhat to the constitutional holding. the e going to be some cases that, as a technical matter, section 706 of the apa wouldn't doesn't apply.

and so, if it's an apa holding, it may be that in those cases there might be lingering uncertainty about whether defencshould -- should apply to cases that aren't technically under section 706. i think the second things figuring out what the duty under the aptonterpret the law, i think a lot of that analysis really overlaps with the constitutional points. and i think, if you -- if you get to a placwhe you agree with us on the apa, it's not that far, not atifferent to ultimately agree with us on the constitution as well. and then, finally, i would just say that although, of course, this court often prefers to rule on non-constitutional grounds, i think 's also recognized in cases like pearson versus caah that there's going to be a value and a benefit to the juci system to providing clarity about what the nstitution means. i think -- i would respefuy submit this is one of those situations. justickanaugh: on the question of how much does chevron matter on e ound, i think you addrsethis a little bit by citing judgeern,uo elaborate on that?

i mean, are -- there are cases, i sume, that get to chevron step two pretty regularly. martinez: very regularly, your honor. it happens all the time. and i think, if a caseikthis one or two cases like these two can get cvron step two, i think that suggests that it's really hartoigure out how chevron step one is supposed to work. i mean, the digital realty case is another great example. that's a case where there was a statutory definition of the term "whistleblower" that required the person to have gone to the sec and -- and, you know, bmted a -- a complaint, and the government and the lower court concluded that that was ambiguous and that imit actually apply, it was reasonable to read the statute to not require aept to the sec. so i thi tre are cases, there are examples like these that come up all the time, and, yokn, thankfully, this court ng time, but the reason that the problem is there is beca you've told lower courts how to their interpretation. and as long as that instctn is out there, there are going to be a lot of cases that get it■mk wrong, and you're not going to want to be ithbusiness of sort of error correction on each one. justice kavanaugh: on the question of how congress can

operate without chevron, i just nto elaborate on -- have you elaborate on that a littleor my understanding is congress oftentimes will use terms like "the agency n gulate reasonable limits" or "appropriate limits," and that gives, und lot of discretion to the agency to ma choices to do what justice kagan was talking about, to thinabt the world as it exists five years from now or 10 years from now and not have to worry about going back to ngss. so the question really is for core choices, i think, what kinds of brd,apacious terms it uses, as opposed to using more defin terms or statutory terms -- yes, it can't rewrite that. at least that's how i thought congress cou orate in a world where chevron does not ext. martinez: i -- i think that's exacy ght, justice

kavanaugh. and i think that, like i sd earlier, in -- in those situations, the court's job is basically figuring out what the best interpretation of that word is. and in many cases, maybe most cases, those types of capacious words are bay -- the best understanding of those words is that congress is, in fact, conferring the discretion on t a's very different from chevron, where, instead of hang any sort of language like that or express language conferring a delegation, you're -- you're basically applying al implied triggered by ambiguity, which is like -- you know, frankly, it's -- it's -- it's not -- it's fictional, it's made u and so i think a world in which co, when it wants to delegate to agencies, needs to be express and use language like that or other language, i think is a better world from the pepeive of -- of article i justice kavanaugh: thank you. chief justice roberts: justice baett? justice barrett: mr. martinez, i want to return to the question that justice somor raised about stare decisis. so you said that overruling chevron wouldn't have an effect on the many cases that have gottenevron step two and then deferred to the agency.

you said -- am i -- did i un so isn't it inviting a flood of litigation eveifor the moment those holdings stay inctominholdings in those cases, i would just quibble slightly, i would -- i would describe the bottom-line holding bng that the agency's action was lawful. and so that'thbottom line. i think it's true that people cod come and say, look, the interpretive methods have changed ncthis bottom-line holding was issued and we think that -- that, you know, a ffent result now should apply. and -- and that's why courts nser requests to overturn precedent. but i just think that theyou apply the same standards that they would applyo her stare decisis inquiries, and i think it woulbehe rare case that would require -- that -- where a court woulsa this -- this decision not only isn't the best interpretatn, but it's like so bad and so practically important that we' going to overturn our own precedent. so i think that would be the safeguard. justice barrett: so, when you that the bottom-line holdings, you -- you've kind of chane level of generality, right? if you say the bottom-line holding is that the agency's interpretation is lawful, you ink it's not open tople to co b it's actually not lawful, this is wrong. the court got it wrong bau the best interpretation isn't the age's. martinez: i -- i think litigants

could make that argume, t i think they would have to overcome the nstare decisis test, which is very hard to overcome, and s would probably have to show that it's really wrong and r practically important.

and i think most courts, d imagine this court, is -- is going to find that that reshold is -- is met, like, almost -- very rarely, maybe almo ner. and so, as a practical matter, you're not going to bepeing, you know, those -- those bottom-line decisions -- stice barrett: ok. martinez: -- even if you let people in theo ce and challenge them, which they can do now. juste rrett: so let me ask you -- you -- you just referred to the, you know, serious stare decisis threshold, you know, that ul have to be overcome. martinez: yeah. justice barrt:o let's talk about the stare decisis threshold here. why is it different here than it was in kisor? you know, inis, the cour declin to over■árule auer and the part -- the opiothat was for a majority of the court was largely it was on ste cisis grounds. so why would a different result obinere? martinez: i think my first answer is that the chief justice's opinion suggested it might be different and i think the reasons why it's -- it's reason -- it's -- it's -- really is different is because there are important differences between chevron and auer. the most important that i think ays on the reliance question is this idea that chevron allows and -- and almost like a feature of chevron, not a bug, is that ncourages and allows agencies to flip-flop. and so the reliance consideration with respe chevron is -- is much, you know, weaker for -- for -- f government's side because the agency is allowed to flip- all at once, whereas, with our deference, the idea is that the agency -- it's going to be very hard for the agency to ip-flop. so i think it's more important to correct chevronse it's -- it has that mistake that auer there are other differences. you know, chevron is problematic use it lets agencies say what congress intended or what congre's meaning was, as opposed to just saying what they

themselvnt with the regulation that they themselves enacted. i think the -- the kind of -- you know, the deference makes sense when you're deferring to the provision in question as opposed to deferring to their retation of -- of a provision that was created by congre i en expertise. auer is limited to agency expertise. so auer is -- is narrower. there's a difference even with the apa more clearly putsi think constitutional interpretatio and statutory interpretation on play into the analysis. might you know, this court, plurality in -- in kisor sort of emphasized that -- that the apa was enacted after seminole -- a year after seminole rock, and so maybe as a basis to think that -- that congress was okay with something that looked like auerence. but that's not true here. chevron came many years after the apa. so i think there are of differences that really flesh out, i think, the important point that the chief justice was making, which was that the analysis there doesn't automaticallsfer over to chevron.e barrett: thanks. chief justice roberts: justice jackson? justice jackson: so i've heard u say several times that you

agree that judges should not be policy, they should ! doing law. and i guess i toe with that, and my concern is that it's actually not as easy as it seems tonguish between the two and -- and that it appears t you sort of say, well, you come up with the best answer, it's a gal question. but i'm not so sure it's a legal question as d to is it the best under the sort of policy regime and i think that ther's a real separation-of-powers danger here to the extt at you're saying that the judges are deciding whether or not this is setngyqp the agency should do or not, whether this is a legal question or not. yokn, there's the old saying that when you're a hammer, evytng looks like a nail. are going to look at all of the

questions related to atate and call them legal if we don't have something like chrothat requires judges to be actually thinking about their propero relative to this issue. so how can you assuage my coern in that regard? martinez: so i think two points. i think e rst point i would make on the distinction between law and policy and how they kind of mbeeem like they blur together, i think that -- that there are just so many instances in which a court can get a estion that comes before it that maybe it involves an agency regime, but the agency hasn't and i think the court in that circumstance just does its best. it doesn't have guidance, it doesn't have instructions from the agency. it does its best. and i think, when it does it best -- justice jackson: but does it have to, mr. mar i mean, there are -- there are other regimes in which a court is presented with a question and question that it cannot answer. so what i'm saying is that it' not necessarily true that just because the court gets an issue, it automatically says, oh, this must be legal, i have to act.

martinez: but, if -- if the court go--ust to go back to justice kagan's hypothetical, the quesonf what -- what is a dietary supplement and the agency hadn't acted, i think the court would absolutely give aning to that. and i don't think the court would think tht it's doing is making policy. justice jackson: well, l m give you a -- a particular example, all right? inood and drug and ppveonly if an adequate -- "adequate and well-controlled vestigation" shows that the drug will have its attend -- intended effect. this term, what is an "adequate and well-controlled investigation," is it your vie that congress waed the courts a study to be adequate or well-controlled? i mean, how would a court go about determining whether tha's something it's supposed to be doing or the agency is spod to be doing? main: i think that the -- the court would -- would do exactly thkind oane statute witt the agency acting. and i think what that means is the court would go in and it would do everything that -- that all agree happen -- should happen under step one. i think thon difference is that if, after doing that step one analysis, thcot concludes that there's a better view and a less tt view, then the court should just go wi t better view. justice jackson: but when -- when does e urt decide that this is not my call? martinez: well, i think at the -- juste ckson: i guess that's the part that's dropping out f me in your analysis.

you just say, you know, we do a st one analysis and then the court makes the interpretive decisi aut what this means. and i guess -- martinez: i -- i -- i don't think the court ever says that it's not my call if the question in front of it is a question of statutory interpretation, job --e i think that's a core justice jackson: so every statutory retation question is one of law that a court can decide, you' saying? martinez: yes, and that -- juice jackson: there's never a statutory interpretation question that is one of policy that you see congress may have been intending the agency to answer? martinez: i think, by definition, if we're talking about interpreting a statute, then you're talking about a legal question in the same way at if you're talking about interpreting the constitution, enou have a constitutional question. no one would say that you ul apply deference there. justice jackson: so there's never a world you -- maybe we just differ on this. i'm worried about the courts becoming uber-legislators, that when we have policy -- so one way that some of the exrts have looked

at this, some of the legal -- legal scholars have looked at this, is that theyaywhen there's an ambiguity, there are actually different kf ambiguities. so you might have a situation in ich there's a statutory term and it's ambiguous in the sense that there are several reasonable meanings of what "stationurce" might mean, for example, several different ways that yocod define that. analysis, the question is, who's going to make the choice etween what those meanings are? and i hear you saying there might be a best choice, but i gueswe're talking about a policy question, there are several asable meanings, why shlddermation? martinez: i -- justice jackson: and -- and couldn't we be in a world wre congress intended for the agency to actually decide which choic is best? martinez: i think where i -- where i would just sort of disagree is what you said at the end when you sort of assumed that it was a policy question.

i would just say that if it's -- if t qstion is the meaning of a statutory term, that's an interpti question that's a legal question and would be treated egaluestion anchad act. justice jackson: all right. let me ask you one morthg about practical implications. so let's say it is, youno a legal question, as you have analyzed, adequate and ntrolled investigations. if i'm an agency and i'm trying be responsibl h these undefined terms in a statute and seek, you know, a atory judgment as to the meaning of "adequate and controlled" "well-controlled investigations" before it goes forward with s policy? martinez: no. justice jackson: all right. so the agency can come up with its own definition and implement it and then wait to be suewi respect to that, and -- and ery term undefined in a stwe're going to have litigation about? think what the agency has to do is what erne else has to do, which is try to figure out what

the -- what the law means and then act accordingly, and if someone challenges that, then that'll get sorted out. if there's a -- a stat -- a legal question, a statutory interpretation question, then that'll get sorted out by the courts. but the agency 't, like, paralyzed -- justice jackson: what do we do out the -- the chaos that we talked about in -- in the city ofgton case that comes from perhaps having different rit? we have 11 different, you know, jurisdictions that have legal authority. of "adequate and well-controlled investigations," you say the urts wddl so it out. well, first of all, it will take yearpeaps for the courts to

sort it out. what is the agency suppose be doing in the meantime? and different courts from all of these different jurisdictions could actually have a differen view, as justice sotomayor pointed out, of what "adequate d well-controlled investigations" are suos to do, so -- means. so'ct(y anchtic to have a world in which every undefined term in a statute is subject to litigation if you're trying to govern? martinez: well, i -- i do't think it's impractical. i think that to the extent tha justice kagan's questions sort of indicate that ther's actually a relatively small set of cases in which chevron' going to make a difference, you're going to have that sa problem with respect to the cases that maybe 20 years ago under a looser approach to chevron wouldn't have gotten fence.="

justice jackson: wouldn't you have more of a problem in a world in which we've gotten rid of chevron because it's going give incentives to parties to raise legal issues that they wouldn't have raised before? martinez: i -- i don't think it's a problem to -- to have parties, if they think an agency is overstepping the boundaries and if they're right that -- stice jackson: no, i understand, but, under a chevron regime, gh if that's the background rule, then you're going toavparties thinking twice before going down a litigation road wi rpect to a term because they're going to say, at the end of the day -- martinez: right. justice jackson: -- the agency has a reasonable interpretation, that's what the court'ing find, so it's not any -- ez: right. you're -- beg less likely to challenge agency action that is unlawful under the best interpretation of the statute because they know when they go into court, the judge is not going to apply its independent neutral judgment and instead is going to tilt the scales and defer to the agency. justice jackson: thank you. martinez: and -- chief justice roberts: thank you, counsel. general prelogar. oral argument ofen mait please the court: the chevron framework is a bedrock principle of administrative law with ep roots in this court's jurisprudence. ovruling a precedent is never a small matter, but overruling a precedent as foundational as chevron should require a truly traordinary justification, and petitioners don't have one.

they say that article iii quires de novo review of all statutory interpretation questions. but that's flatly inconsien with precedent goi bk to the marshall court and with the traditional limits on mandamus jurisdiction, which governed most judicial review of executive action in the early republ. they've said that chevron violates due process. buapplication of deferential standards of review doesn't constitute impermissible and they contend that the apa requires de novo review. but that theory is istent with the statute's history and the w's been understood ever since its enactment, including in t me than 70 cases in which this court has relied on chevron to sta an agency's interpretation. on topf ?.■ interests in this context are at their apex. congress, agencies, states, regulated partnd the american public have all relied on chevron and the regatns upheld under it to make important decionthat could be upended by overruling that framework. thousands ofudial decisions sustaining an agency's rulemaking or adjucaon as reasonleould be open to challenge, and that profound srtion is especially unwarranted because congress could modify oovrule the chevron framework at any time.rs

considered proposals to do so, but it's never taken that step. instead, congress has legislated for decades with chevron as e background rule informing the degree of discretion that congress has chosen to confer on federal agencies. just fe ars ago in kisor, this court declined sil calls to overrule the auer deference doctrine based on manyf e same flawed arguments that petitioners are making here. e court observed that it would be the rare overruling tt would introduce so much instability into so many areas of the law, all o blow. overruling chevron would be an even gat and unwarranted shock to the legal system. i welcome thc's questions. 706 of the apa was not mentioned in chevron. how wod u reconcile the

requiremtsf -- on this -- on federal courts under 706 with your view of chevron? general prelogar: section 706 says that courts should decide all relevant questions of law and interestatutes, but none of that is inconsistent with the chevron framework because 706 doesn't prescribe a universal stdard of review to govern those kinds of statutory interpretati qstions. and the courts are interpreting statutes when they walthugh the chevron framework. first, there's all the work that the court does at step one of that is using the tools of interpretation to identify whether congress h sken to the issue in of the matter. so, in that sense, in a step one case, the court has, of course, tereted the statute.

but, in a situatiowhe, at the end of that interpretive process, the court is left with no conclusion that it's acal able to ascertain that congress has spoken, then, in that circumstance, i think the right inrptation of the statute is that congress left a gap or maybe created an ambiguity and multaneously vested the agency with the important responsibility, pursnto an express delegation, to administer that ate with of law. and that's within -- tells the court what the relevant question of law that's left over to it's whether the agency acted within the bounds that congress itself prescribed. so i don't think there's any fundamental incompatibility with section 706 and what chevron dictates about how to think about congress's delegations. justice sotomayor: can i say, counsel -- gener, know plenty of statutes where congress uses the word "de novo." it didn't here, correct, in 706? general elar: that's correct. justice sotomayor: i thought it,

and i do think it, would be revolutionary to say that congssan't limit judicial review. aedpa is the quintessential quti where we not only give deference to state court decisions, wsaeven if got it wrong, if it didn't get it reonably wrong, we are superseding the court's ability to dla a violation of the constitution and give relief. so i -- i -- i think it would be radical to say that ngss couldn't implement chevron. in fact, there is legislatn overrule chehaha't passed. there are stut that basically don't -- say apply de novo review, correct? general elar: yes. justice sotomayor: and there are statutesharequire differential review explicitly to legal questions, co chevron? general prelogar: yes. e sotomayor: all right. so now we have -- we'ret 706. opposing counsel, said that he didn't see thatdisruption from overruling chevron, that nobodyou really bring up those old cases. do you have a vithat?

gel t imight be easy for him to say that because he is not going to be involved in the endless litatn that i think would result if this court were to overrule cheon i understand his point to be that all of thhoings in those cases will be secure becae are decisis will apply in those contexts. but the poant thing to realize is that in those cases, as justice barre's questions emphasized, the court has decided that what thagcy did was reasonable. the statute has essentially been interpreted to vest the agency with discretion such that the en's regulation is being held lawful or valid on the basiofeasonableness, and i think that that means that litigants willomout of the woodwork seeking to open those decisions and coenng that they didn't actually address what they now say ishe ons reasonable or whether the

regulation can be upheldn at basis, but how the statute anting any deference to theut agency's interpretation. chief justice roberts: counsel, i'll ask you the same question i asked your friend. you began by saying chevron is foundational. we get a lot of statutory interpretations omgencies, and i don't know whether it was 14 or 16 years, we haven't relied on evn over that time. i -- i mean, have we overruled it in ce even if we've let the -- had to leave the lower courts to continue to grapple with it? general prelogar: no, i don't think so, mr. chf stice. it's been eight years since this court relied on chevron at step two, but there's no case that my frnds have been able to point to where the court has said that stute was ambiguous or left a gap and chevron would otrwe apply, but the court rcstce. i think that that -- iejustice roberts: no. but, i mean, that's simply a function of the fact, when -- when we go through theorof trying to interpret what a statute means, when we get to the end, that seems to be the right interpretation, d -- general prelogar: i agree.

those are step one holdings. so i- i think that they are nstent with the chevron framework. and the fact that this crt recent years wayndicates that in those cases where co is, in fact, leaving ambiguities or gaps, chevron no longer sets the right ground rule for understanding the scopu about what i see is an internal inconsistency in cvr itself? it relates to footnote 9, which isat crt should use all the traditional tools of statutory terpretation before getting to step two. my concern about tt my confusion about that is, if you use all e aditional tools of statutory interpretation, you'll geannswer. and we know that because, in cases where we don't have an agency invold d we use those same traditional tools, we get an answer. so how do we deal with footnote 9, which seems to suggest that you'll never g tstep two if you follow footnote 9 by what it says? general prelogar: so what the urt said in footnote 9 is that the court should use allf e

traditional tools to ascertain whether congress h aintent on the issue. and that, of course, is an important part of this framework because, if congress actually spoke to the issue, then theny discretion to act in a way that's contrary to congress's express direction. justice kavanaugh: do you think that's different from ascertaining whathstatute means? general prog: i think that there can be a relevant difference and it toucs exactly what you were asking about in the context where a court has to do it without an agency. in that circumstance, i think it's absolute rht that the court is ultimately going to keep working and dece w it thinks the statute should best be administered, even in the circumstance wherehe might be an ambiguity or a gap to fill. but what cheonecognizes is that there is a third option available. it'not just congress spoke to the issue and it necessarily authorized what the agency did oroness spoke to the issue and it prohibited what the agency did. there is a category of cases and statutes out there where, really, using all of t tls, the best interpretation of the statute is that core didn't resolve it. d coupled it with this express authoratn to the agency to carry that statute into effect.

this is congress and the agencies working together hand n -- hand to put into effect this justice kavanaugh:owould you define ambiguity or how would you, if you were a judge, say, yes, this is ambiguous or no, that's not ambiguous? general elogar: so i would draw on what the court said recently in kisor where it said statute is ambiguous when the court has exhausted the tools of interpretation and hasn't found a single right ansr. and i recogne,ustice kavanaugh, and you have expressed these concerns that there arso limits of language here and it's notanfi's because i think it's a standa that inherently requires the plation of judgment. and at the end of the day, what the court should be looking for and asking itself , d congress resolve this one? do i have confidence that actually i've got it, i undersndhat congress meant to say in this statute i meant to proscribe a -- a uniform approach to stiory source, that it has to be plant-wide or it has to be a particular piece of equipment?

but, in a circumstance like chevron itself with stationary source oso of the examples that the justices have been talking about wi rsonable or feasible, i think you can get to the end of that presand a judge could say: i think, actually, the way -- the right way to understand this statute is that it's conferring discretion on the agency to take a range of permissible approaches. justice kavanaugh: do you -- do you think it's ssle for a judge to say, the best reading of the statute is x, but i think it is ambiguous and, therefore, 'm going to defer to the agency, which has offered y? general prelogar: no, i think that that would probably -- justice kavanaugh: that can't happen? i think that happens all the time. general prelarwell, i think that trere two different ways in which courts use the term "best interetion of the statute." so, if what you're asking i is there a world in which a judge could go through the rigorous step one inquiry, apply all of the tools, and say, i think there's a best interpretation insars i think congress spoke to the

issue, but the agen's interpretation is it could be permissible, i recognize the's some doubt here, the answer is no. chevron do n require a court to ignore what is ascertained doing the stepnenquiry. at that point, that is the -- the judge's nclusion that congress actually spoke to the issue and chevroisotally clear about this, give effect to it. but, if what you're asking me is, is there a world in which the court could get to the endee that congress hasn't spoken to e issue, and then say, if, in fact, the courts had beegin the role of filling the gap, i would have done itifrently,■ wo discretion that congress left open in thistate in a differt y, even looking to things like the overall objectives in the statutory prraas a whole, then yes, of course, in that circumstance, it's -- it's implementing ngss's directives -- justice gorsuch: i mean, ger -- general prelogar: -- for the court to not -- interrupt, but those are two different -- very different views about what qualifies as an ambiguity you've just given us. one is there ia tter interpretation. i provide it as a court. the otheiswell, yeah, but i'm going to defer anyway given whatever considerations you want to throw into the ambiguity bucket. and that's exactly the problem that your friends t other side suggest have persisted in

the lor urts for 40 years and why some judges claim never to have found an ambiguitynd other equally excellent circuit judges have said they find them all the time. and it's so why, i don't know, maybe a dozen or more circuit judg he written asking us to overrule chevron. and -- and -- and -- and -- and it also may be why one of your colleagues last year said i don't know what ambiguity means at this lectern. d should that be a clue that something needs to be fixed hereth even the federal government at the podium can't answerheuestion what triggers ambiguity? you've given us two diffen alternatives today, and so many wer cot juuswa to follow whatever we tell them to do faithfully can't gu it out.

geral prelogar: so there's a lot packti gorsuch, and i want to respond to each of your concerns. first, i would draw from chevron and kir defining what is an ambiguity. it is when a court has applied the tools ofonruction and can't ascertain that congress had an intent on the matter. so i tnkhat that is the core question for a court at step one of chevron, and if that's the rcstance, that would only ever move a court to applyin deference at step two. now i understand the concern you expressed that maybe lower courts are too reflexively finding that there's ambiguity at -- justice gorsuch: well, you gave us a second definition just a moment ago, and -- general prelogar: i was trying to -- to explain how i thought that sometimes -- justice gouch: some -- yeah. nel prelogar: -- in the case law "best interptaon" -- justice gorsuch: yes. general prelogar: -- is used in two different -- justice gorsuch: right. general prelogar: i don't think that's a different understanding of chevron. juice gorsuch: well -- general prelogar: i think that's really a difference -- justice gorsuch: -- your -- your friend -- general prelogar: -- between step one and step o. justice gorsuch: -- your friend

a year ago thought so and -- a -- and lower court judges think so. generaprogar: so let me respond to the concern -- justice gorsh:o you agree -- general prelogar: -- about lower court judges. if you think that they are too readily finding ambiguity, i think the court could do in this case exactly what it did in kisor -- justice gorsuch: -- we done that, like -- like, 15 times over t lt eight or 10 years, say, really, really, really, go look at l e statutory tools, and yet here we have a case, two cases, onen ich one court found ambiguity and went to step two and anotheonwhich -- well, i can't tell what it did, but there's pretty good ne so, even in a case involng herring fishermen and the question whether they have to be onboard their boats, which may call f se expertise, but it doesn't have much to do with fishg fisheries, it has to do with payments of -- of -- of government costs, we -- we -- lower court juesven here in this rather prosaic case can't figure o wt chevron means. general prelogar: well, i do think that issuing a reminder to courts about the thoroughness -- justice gorsuch: another one? general prog: -- that's necessary at step one could make a difference in this context. and cajust share anecdotally on behalf of the government that we have canvassed the litigating mpents and looked at the

lower court case law. and after kisor, lower courts granted auer deference far less frequently, so i think it can matter and that lowecots can get that kind of message if you're worriedbo it. but, justice gorsuch, the other point to add here ous have different reactions in trying to implement chevron at step one, i think it's important to thi aut the alternative as well. it's not as though, if this court erled chevron, that's going to get rid of statutory gaps or ambiguities. justice gorsuch: no, it takes -- genel elogar: they will persist -- justice gorsuch: -- us back to skidmore, which justice jackson, the most ardenofew dealers, wrote and that persisted in this courfo40 years, more or less, after the apa. and the world seemed tcoinue on its axis just fine. general prelogar: but it's not going toree greater predictability or stability or consistency across judges. justice gorsuch: that's that's -- general prelogar: if anything, i think at- justice gorsuch: -- an

interesting thing to suggest that chevron predicts stability, when the whole point -- i di't see you mention brand x much in t -- i'm sorry to go back there, but -- my good friend, bubrd x is a recipe for instability, isn't it, because each new adminion can come in and undo the work of a prior one. they're all reasonable. i mean, my goodness, the eran people elect them. of course, they're reasobl people. (laughter.) stice gorsuch: and -- and -- justice sotomayor: thamabe the first -- (laughter.) would have thought that chevron, at least as this court's understoodt,s a recipe for anti-reliance. neral prelogar: so i disagree with that characterization about brand x, and i thinkiends have created, kicked up some dust about exalyhat brand x does --

justice gorsuch: so you do -- general prelogar: -- and doesn't do. justice gorsuch:- u do endorse branx,he government does? general prelogar: yes. thk it is a logical follow-on of chevron, and here is why. as brand x itself recognizes, if the court has found at step one that congress spoke to the issue, there's no room under anx for the agency to reverse the court or somehow change the uering meaning of the statute. instead, the statuteaseen interpreted at step one and what congress says goes. it's only in the category of step two cases where brand x comes into play, and in that circumstance, it's because the court in the prior case has understood the statute to leave a gap or an ambiguity for the agcy to fill, considering a so, in that circumstance too, the meaning of the statute don't change. it remains a gap for the agency to fill at time o,nd if the agency is running through all of the procedural hoo, ich can be quite burdensome in this context, to change its regulatory approach, it is still acting consistently with the -- justice gorsuch: or not. general prelogar: -- wh e discretion.

justice gorsuch: or not if i-- if it issues an interpretive rule without notice and comment or issues an adjudication. itayr may not be that burdensome, right? so brand x also sa tt an agency can overturn a prior judicial interetion. and i saw that as a circuit judge with respect to an alit' understanding of the law. and the government come back and says, no, you have to overturn your precedent, tenth circt,nd he's not allowed in the country. and we had to overruleur judicial precedent. do you think that's an appropriate understanding of the law too, that judicial precedents, maybe even precedents of th crt, can be overturned by agencies? general prelogar: it depends on what the judicial precedent held. if it held at step one that that statute was clear, then of course not. but brand x doesn't require that result. if the prior precedent held that congress didn't resolve the issue d d delegated to the agcy the responsibility and role in administering it and filling the gap, incdi with the possibility of changing regulatory approaches baseon things like change -- justice kavanaugh: but the reality -- just to pion that, the reality is -- you -- you say don't overrule chevron because it would be a shock to t this works is chevron itself he in shocks to the system every four or eight years when a

new whether it's communications law or securities law or competition law or environmental law, and gs om pillar to post, like professor pierce wrote,nde had been a fan of chevron. now he's not because he says 's a source of extreme instability in the law. that's his -- his phrase. and it just seems like you just pay attention tohahappens when a new administration comes in at epa, at sec, at ftc, you name it. i's just massive change. at is at war with reliance. that is not stability. and so i think to hold up stability and reliance is a little toughiv just watching how it operates every four years. general prelogar: well, l m reactions to that. i think that that is a sll circumstances.s or and in the mine n se involving agency regulations, agencies themselves build on

those regulations as a foundation. there's no evidence that agencies are out there iplopping left and right or doing so on a whim. and it brings me to the justice kavanaugh: i don't think they're -- i'm rry to interrupt -- and i'll let you finish. but i don't think they're doing it on a whim. i think they're doing it because they have disagreement with the polithe prior administration and they're ung what chevron gives them and what they can't t rough congress to do it themselves, self-help, and to do it themselves unilaterally, which is completely ionstent with bicameralism and presentment to get your policy objectives en genel elogar: but, justice kavanaugh, the premise i think that'emdded in that question is the idea that congress had spen to that issue.whe congress didn't resolve it and, in fact, wanted the en to have flexibility and a range of options, ther's nothing inherently problematic or incompatibleitour system of government to recognize that agencies can carry out those directiv. and just look at

"stationary source." you know, that was a circumstance where thcourt said, applying all of the tools, congress didn'have a view on it. it didn't want to foreclose a plant-wide dinion. it didn't want to foreclose an equipment-specific definition. and i think itasntirel agency to come in, take stock of the entire suaon, and, yes, ta aount of the policy goals of an incoming administration of the regulated partiesnd give them flexibility. that's just part of congress's design. justice jackson: after all, you kn, takingnt admistration reflects a democratic structure where w]= have the new administr being elected by thee on the basis of certain policy determinations. i guess my concei suppose judicial policymaking is very stable but precisely because we are noacuntable to the people and have lifetime appointments. so, if we have gaps and ambiguities in statuteanthe judiciary is coming in to fill

them, i suppose ou he a -- somef a separation of powers or policy -- excuse me -- separation of powers concern related to judicial policymaking. am i wrong to be worried about that? general prelogar: no. i think that that concern is valid, and i thinkt's valid along two separate dimensions, and one is these scenarios where we're at chevron step two, by definition, i's because the statute itself doesn't supply an answer a t court can't ascertain that congress actually meant to resolve it. and in that circumstance, it's entirely sensible for congress to give the ise an agency when it is charged with administinthe statute and, of necessity, is going to have to fill the gap along the way. and congress could quite letimately want the agency to draw on its policymaking expertise in figuring out the right way to fill the gap. justice jackson: wha- what do you say to . rtinez, who says we've already charactered that as a question of law because thcot was involved at step one in making the deteion, and so it seems a

littledd -i think i ok th away from his presentation -- to suddenly say, when we're in a step two gap-filling wnow we're going to call it a policy question as opposed to a legal one? general prelogar: so i think you can still characterize it as a legal question while recognizing that ia rcumstance, to borrow justice kagan's words, where the law has run out an congress hasn't actually spoken to the issue, the court,f resolves that issue, is -- is going to have to draw on a set of considerationtonform its judgment. and i wouldn'call it policymaking, but i do think it means thatheourt can't suggest that the answer it is giving iabluly beus by definition, we're in a world where congress didn't speak to it. sohe court will have to take account of a narrower range of circumstances, things like theor objectives, to try to fill in the gap. but the poinishat when congress has left that gap and charged e pert agency with the administration role, congre cld have every expectation, and chevron says coress has the expectation, that the agency will fill the gap and that the courts will

respect it within the bounds of reasonableness thays aly in this context. justice barrett: g prelogar, most scholars of statinterpretation consider chevron to be an reti canon, much like clear statement rules, rule lenity, judicially created. do you see chevron that way? and, if so, do you see it as different in kind from any of the other cansf interpretation that we apply? general prelogar: i do think it is difre. i don't conceive of it as a canon. instead, i think that it is ndentally rooted in -- in nd of setting the ground rules for how all three branchesf the government are operating together. and what i understand the court to have been doing ichron is recognizing that there are legitimate reasons why congress cannot aweevery question itself and why it will want to go hand-in-hand with an agency ministering the statute. and in that circumstancei's the role of the court to give effect to that. so i think 's not just kind of an interpretive canon, but, rather, it really is grounded in the sepation of powers. justice barrett: so is it dependent on a judgment about wh cgress would want, one that would have to be

empirically tested? geral prelogar: so i don't think that it's getting into congress's subjecventent, although, certainly, i think the primary rationale is, as an erching matter, what congress would have intended when it comes to gaps. and i don't mean to suggest th this means that congress tnk about each and every gap it's creating in the moment. sometimes i think it does and it's clear when it says set reasonable rates. it knows that it's t itself prescribing what those rates will be in conet circumstances. it's leaving gaps and the agency has to fill it. but i think, even in the circumstance where congress doe't know it's creating it at the time, someone's going to have to come in tethe fact and fill it in, and it's either going to t agency or it's going to be the court without deference. and in that circumstance, i think the court appropriately recognized congress would want for the agency to dot. justice barrett: and how do we know -- this is -- goes back to that question of what is the igr of ambiguity that justice gorsuch was asking you. so think about a concrete example like pulsifer, which the uned states is on the other side, pending before the crt

turning on what "andjos together. general prelogar: we think that one's clear. i'll just puut there. (laughter.) justice barrett: slet's --■r put aside the question of whether, you know, the departf justice and the in interpreting criminalerence statutes. ju ese that issue from the picture. is that the kind of question - you know, judges below, very smart, very reasonable judges reached different conclusions about what that word in the statute meant. is that the kind of question then, ow, thinking about brand x saying, well, it doesn' have to be the best, it just has b you know, a plausible reasonable one, is that the ki statutory question that would trigger ambiguity and step two deference? general prelogar: ihink it's hard to speak in generalitiesbo this. and i am struggling because, of course, the court has recognized that the department of justice does not get deference in th criminal contextitrespect to

that particular issue. justice barrett: and it'th statutory structure in a communication woulsato just try to address the overarching question is that, you owi think that it's going to be kind of specific exercise in every case, and i can't say res the formula i can give you to know when the statutory interpretation exercise at step one runs out and theou should feel like, i don't have an answer, congrs dn't supply one and when not. i think it'going to vary based on the statutory scheme. but, in chase, the court should conduct that inquiry, maket thorough inquiry and take account of all of the relevant aspects of terpretation that can bear on meaning and show that congress, fact, did resolve it.thcot, and it's the role of the court likewise to enforce congress's directions. justice barrett: so that kind of question, putting aside the governmen's position inlsso may- th's an unfair question to ask you, but that kind of questi you think would be the kind of question that could --ounow, let's take it outside of what does the word "aan. you know, a question of statut structure, the placement of a comma, youno that kind of a thing, that is the kind of qustep

two deference? general prelogar: i think conceivably could. now i want to holdpeand acknowledge that the court has said there are certain types of statutory quesonthat don't fit within the chevron framework because there are kind of statute-spif reasons to think congress wasn't giving thisto i ink the major questions doctrine is a species of that. i'd pointohe adams fruit case as well where it was a judicial review prisn and ththg r the agency to do. but i think, in thmi run case, yes, and -- and to the extent you're saying, well,t feels odd for it to depend on a comma or to turn on the meaning of the word "and," holds because, in th ctext, congress, if it, in fact, has left the ambiguity or the gap, recogniz that the agency is going to have to come up with an answer justice barrett: except a lot of tim ambiguity or the gap, right? it's just lims language, limits of foresight. general prelogar: yes. so i think a crtltimately, if it's able to ascertain that, although it's not perfectly clear inhetatute, you can

figure out what congress intended, give effect to that, that's step one. at least congress knows th i it's going to unintentionally create ambiguities or ga, chevron is the stable background rule. it's been the rule for 40 years. this court ackwlged in city of arlington that congress, in factgiou othat rule, and so it knows that with anything it's doing that's unintentional, that will trigger if the predicates are satisfied. justice kavanaugh: i'm sorry. can i ask you about the phrase "law runs ou" e way to think about that would be if you had the same statutory interpretation -- chief justice roberts: go ahd and finish, sure. justickanaugh: same statutory interpretation issue in a non-agency case, coulth court decide it? and if the answer is yes court could decide it, then the law hasn't run out, so, therefore, you could ask yourself thaqution in an agency case. if ts re a non-agency case, would we come to an answer on this case? anif so, you don't go to step two. what's onwith that?nocoect,

because i don't think you're going to agree with at- how would you define when the law runs out short of that, which i thinis problem, as you said, generalities about this. that's the problem. geraprelogar: yes. so you predicted my answer. i don't agree that it's only in a rcumstance where the statute would be incapable of the ur issuing a decision at e d of day. of course, if a case comes to the court and itaso resolve it, it's going to have to do its level best. but what i meant by the law running out is that if the court has walked through all of the tos of construction and interpretation and does't think that congress acal directly spoke to this issue, congress itself didn't resolve it, then the kinds of tlshe court is going to have to use will be ones that sound in things like the erching statutory objectives that congress revealed as part of its plan. and i think that in a -- a■< chevron circumstance, the insight of the cour's opinion there was that the court doesn't have to go on and itself supply the answer when, actually, the best way to understand congress

having not resolved it itself was to make the primary cisionmaker or the person with e imary role in the first instance to be the agency. chief justice roberts: thank you, counsel. justice thomas, anything further? justice thomas: just a -- a couple qstns. you said that in an exchange with jusceotomayor and me that congress could require so derence when it came to questions of statutory interpretation. and in 706threviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, et cetera. could congress also require deference on the part of the court with respect to constitutional issues? general prelarso i think that that would raise distinct issues in light of the different history atould be in play in that kind of hypothetical. there has not been a

longstanding history of courts deferring to agencies when it cos to interpreting the constitution, so i think t could be a unique article iii interest at stake th buthe history runs in precisely the opsi direction when it comes to statutory interpretation, whencies erg because, as we've tried to explain, chevron was not an innovation, it was not meing new. these principles of deference go all the way back to the ve founding years of the republic. they're reflected in things like mandamus practice, where virtually all executive action for the rshundred years of our nation's history was reviewed defertily, and then it was continued in a long line of cases from this court recognizing specifically that in a rcstance when you have the executive administering the statute, congress coulgate and could expect for those delegations to be respected. justice thomas: i think mandamus is a little bit different and the other extraordinary writs in that you had quite a high hurdle before they became applicable,■a

but we normally say that ts court reviews questions of law de nov a that includes statutory and constitutional. how would you distinguish that normal practice from what you're saying? general prelogar: well, i think it is more nuanced than that. i certainly take the point that the courreews many legal questions de novo, but that's not invariably the case. there can be issues that ari under distinct statutes that set forth more deferential standards of review. aedpa is a good example of that. there can be circutaes like mandamus where the nature of the action itsf ctates a more deferential standard of review. and i just don't think it would, across-the-board matter, de no the standard that always and invariably applies. from this court that were cited in chevron, gog ck to the early 1800s, things like edwards' lsee versus darby, where the court itself wascoizgf

contexts where you have biity in particular and you have an expert agency charge with administering the statute, stice thomas: thank you.ed. chief justice roberts: justice alito? justice alito: can you provide a concise definition of what "ambiguitymes in this context? general prelogar: ambiguity is when the court has exhausted the tools of interpretation and hasn't been that there is a right answer that congress spoke to the issue. justice alito: well, as justice kavanaugh's ce question presented, icas that don't in■y& we have exhausted all of our tools of interpretation and we means. that would seem to suggest you never get to step two. general prelogar: but the relevant question at step one is whether congress is, in fact, resolving it or delegating it to the agency. so i that in a circumstance where you don't have an agency, the court c't give effect to any delegation and, instead, the baupption in a situation where an agency

would otherwise beable is the court has to do it, but i don't think that that undermines the very real on-the-ground possibility that congress is legislating and meaning to give the agency the gap. justice alito: well, i come back to the question of your definition of ambiguity. and what i heard you say the fit edp l our tools and we can't figure out what it means, then it's ambiguous. so do you want to provide an alternative definition? general prelogar: so i think ybe the best way to try to clarify what the definition i'm trying to give is to use an example of something like a statutory term like "reasonable." justice alito: -- really would just like a definition so that althe courts that have to apply the regime that you' advocating will be able to apply it in the many different cases that come before them. general elar: the court gave this definition in kisor five years ago with respect to auer deference, and ihi it's the right definition to use -- here as well has used or exhausted the tools

of interpratn and doesn't believe that it reveals a right aner in that circumstance, chevron said the right way to think about that statute -- the real right answer eris a delegation. justice alito: but again, i think you -- you're running int the problem that we never do that in cases that don't involv an agency. general prelogar: because in those cases justice alito: so i think you've got to provide aifrent definition. now, what i heard you say a lcoup otimes during your argument was it's when we can't figure o wt congress intended. ishawhat you mean to say? general prelogar: that is the inquiry that chevron prescribes that you should be -- and this is drawn from footnote 9, which is other formulation of this, use the tools of interpretation to see if they reveal congress's -- justice alito: what do you mean by what congress intended? do you mean n' think that a majority of the house and a majority oth senate had an intent on the specific question that is before the court? then you'd alwayset 't ink it'st individual legislators' intent.

i think the court in chevron edhe word "congress," but you're really looking at t statute and what the statute reveals about whether it's resolving an issue or not. chief justice roberts: justice sotomayor? justice sotomayor: there hasn't been much discussion on why this is entitletotatutory -- to stare decisis consideration. there's been an argument by titioners that it's not really a holding oa se; it's a method only, and we have said in the pasth a method that lower courts have to use is subject to change we can make without considering stare decisis. so could you address that argume? general prelogar: yes. and i think that petitioners have pointed to two relevant tys of cases that they suggest just mean stare decisis doesn't apply here or it applies in

particularly weakenefo. first, they say the court has sometimes chgethe interpretive tools it consults. thingsiklegislative history might have been in greater favor, at least with som justices, before and maybe he fallen out of favor later. but i don't think that those provida rallel at all, because the court has never distilled those ndof interpretive tools into a goveinframework. it's never, for example, dictated to lower courts you shlde applying legislative history in all cases. and so i don't thinth it has the same kind of roots in the type of binding governing framewk which really has functioned in quite a different way with respect to how you understan and implement congress's directives. e second case they've pointed to is pearson, which hel i the context of the saucier rule, that that was entitl t weakened stare decisis. but there the ursaid that is entirely a rule of internal judicial magent about how courts decide issues and sequence their decision-making process. it doesn't have outward-looking consuees, and it would be foolish to require congress to step in to fix it.

there, too, i think thathe conserations run in precisely the oppoteirection here because chevron is not just binding framework about how urts conduct their business; it also gives notice to the legiate about how its statutes will be construed. and if the court got this wrong when chevron was decidewas wrong about legislative intent, congs there at the ready and is perhaps the best part or institutn government to be able to correct it and actually say, going forward, what it wants the ground rules to be and the final thing i would say, justice sotomayor, is that these were precisely the kinds of considerations that the court took into account in kisor in stare decisis to auer deference. my friends have largely ignored kisor's analysis on this. this was t mority of the court where the court said congre c step in, these deference decisions are balls that are lobbed into congress's court, and there are big reliance its at ste case, here thousands, of decisis at could stand to be

displaced and create chaos if chevron is overruled. so i think that, from a stare desiperspective, that too. justice sotomayor: there -- and you answered the reliance question, because one arguments on the other side is no one has -- well, the first argument, that the court hasn't applied chevron in how many years, and so nobody shave legitimate reliance interests. reliance is that no one shouldt have reliance on a wrong interpretation, basically. general prelogar: ye and i think that those kinds of arguments are inconsistent with kisor and also inconsistent with e know about what happens in the real world. ere are agency regulations out there that have been on e books for decades. people have made investment decisiononhe basis of that. people have decided what contctto eer into on the basis of that. states in cooperative federalism programs have designed and invested the resources int their share of that program. into disarray if now it can be subject to renewed challenge on

the basis tht regulation question, not looking at whether it conflicts with some purportedly better interpretation of the statute. kagan?justice roberts: justice justice kagan: there's been a fair b otalk, general, about how because you don't have a formula for saying when there's a gap or ambiguity so that go to step two or bejudges may have diffentendencies, you know, icmight be temperamental as much as anything else, to find ambiguity, because of that there's going to be so variability. and it's hard to argue th i will be some variability, but could you talk about the variability in the alternative scenario? general prelogar: this is a really iornt point to focus on because, as i was trying to say rlr, in a world without chevron, it's not as though congre ialways going to speak clearly and it won't leave gaps or ambiguities in statutes, genuine ambiguities whe u apply the tools and at the end yoare left with no certainty

about what congress was trng to do. and in that circumstance in a world without chevro wt we'll see is what justice alito was suggesting, the courts will have to go on and try to answer the questi. but there are 800 district court dgthk 's fair to say they will likely have different takes about what to ithat circumstance and what ge greater weight to and how to ultitestut and that's going to create problems for a couple of different reasons. justice kagan: and those differences, to go back to justice alito's earlier qution, i mean, those dierces were part of the impetus for chevron because those differences were loong awfully idealogical in nature, awfully partisan in nature. and chevron, a t empirical evidence suggests, dampens that kind of idealogical division between courts. general ar: that's right. there is good empirical evidence to support that judges have an eaerime reaching common ground under the chevron frework and at least identifying when they can agree that congress did not itself resolve an issue, than they do when theha to ultimately go

on and try to gu out what they are going to say is the bottom line t best way to put the statute into operation. so i thi tt that is rooted in evn, and it just reflects as fochevron and one of thecern, reasons why this inference of legislative intent is sound, because agencies c pvide that kind ofrm rule for the nation, subject to the groundul of course of judicial review under chevron. but i think that the alternative woere there's no chevron is that there will open up wide disputes among the lower courts, maybe on these mine-run statutory interpretation questions in complex programs, like medicare and medicaid, and i think that it could mean that regulated paieare subject to different rules in different parts of the coun you lose the uniformity value, d diminishes the force of the political accountability value. so i think congress wove very good reason to think that agencies should do this and that courts should respect it within the bounds of reasonableness. >> justice gorsuch?

>> you agree that courts, under the apa, have to review questions of law involving the nstitution de novo? general prelogar: yes. i think there might be certain circumstances with respect to certain provisions where more deferential standards apply, but i certnlagree they don't defer to agencies. justice gorsuch: ok. and you agree that, elsewhere iw those de novo, generally speaking? general prelogar: i think that, in many contexts, it's de novo. certainly not in a ctexts. justice gorsuch: the examples you gave, i think, were aedpa and mandamus, right? general prelogar: yes. i thinthe are two good examples of situations where there are specifications of a standard of review that's more deferential. justice gorsuch: i wonder whetr ose have more to do with remedies, right in a mandamus case, a court should say, or can say, what the law is. it just can't ovide relief unless its conviction abth statute meaning is sufficiently clr. same thing in aedpa, that we require a heightened standard before relief is granted.

same thing in sovereign muty contexts. we may think the statute says the government's liable, but we impose a higher standard before we grant access to the fisc. general prelogar: so i acknowledge that i think that many othe doctrines do turn on limitations built into the writ or limitations on remedies. i don't think it woulde ght, justice gorsuch, to say that in the mandamus cases, what courts■ were traditionally dngs saying let me t ide what the executive officer did and just interpt e at and the right answer is the executive waviolating the law, but not clearly outside the scope of the executive's authority. justice gorsuch: but he could do so just as we do in the qualified immunity context. erare two steps to that analysis. you can just go to the second one d resolve it and say, ah, it's not clear, so i can't pride a remedy. general prelogar: but i think, for petitioners to succeed on their article iii argument, they have to show not just that you can review de novo, but you have to. stice gorsuch: -- i'm not asking about article iii. i'm just asking about the apa

and what imes. general prelogar: yeah. soor if i misunderstood. i do think, though, that what the history shows at the very let is there has been no fundamental rule in this cnt leading up to the apa's enactment that you have to riealls erthe f the apa really matters. this court h seral times recognized the apa was a restatement of existing judicial practi wn it came to review of agenc and as we've explained, there are really deep roots rea long line of precedent and history showing that courts will sometimes defer. just as gorsuch -- justice gorsuch: you do point out cases like edwards' lessee and others erthis court gave respect to the federal government's contponeous and uniform interpretation of the statute. and that's actly what skidmore does. it gives respect to coemraneous and uniform interpretations. but chevron, it doesn't matter whether it's contemporaneous and uniform. it could be novel and out of the blue a ionsistent with everything that came before and

it still gets deference, right? general prelogar: disagree with the idea that thoseas stand for the more limited justice gorsuch: well, i'm -- reading from them, but okay. general prelogar: there are dons of them. so i acknowledge that they use rying formulations, and maybe you can find some that look a tt more like skidmore. i think i have a lot that look a whole lot like chevron -- justice gorsuch: let's say you don't. then what? general prelogar: well, i think i -- i just have to dispute the look at gray versus powell, look at nlrb versus -- these are cases in the 1940s thaterleading cases in administrative law. justice gorsuch: oh, i -- i put aside at happened in the '40s because it went back and forth and wound up in 10 you wanted to say it's a very old thing, and the old cases don't look anything like chevron. th look a lot like skior general prelogar: i -- i disagree with at some of them -- say you should give it controlling weight, it should

tip the balance. they're not saying just pay attention to it if maybe it has the chance opersuading you. justice gorsuch: if it -- if it's contemporaneous and if it's unor right? general prelogar: and i just nto add as well -- justice gorsuch: i -- i have another question, though. chron, you emphasize, is -- value-neutral and it' sometimes favor industries that are regulated and sometimes favor the government. and i can rtnly see that in scenarios where we talk about the flip-flop of administrations and new people leave -- come in and replace others and -- and there's a lot of movement from agencies. i think george stigler talked abt gulatory capture.■ i don't worry in a chevron regime about those people. th c take care of themselves, okay? there is political account, fine. the cases i saw routinely on the courts oapals -- and i think this is what niggles at so many of the lower court judges -- are the immigrant, the veteran seeking his benefits, the social security disability applicant, who have no power to influence

agencies, who will never capture them, and whose interests are not the sorts of things on which peopleot generally speaking. an tre, chevron is almost se cited, and perhaps i missed one, where chevron wound up benefitting those kinds of pele and it seems to me that it's arguable, and, certainly, e other side makes this argument that chevron has this dispare impact on different classes of persons, and i wanted to give you a chance to respond to that. general prelogar: sure, and i have a couple of dfent reactions to that. one is to say at, of course, acknowlee at the way that chevron operates, it gives effect to agency interpretations even in circumstances where that ghbe oppositional, some of the categories of individuals that you're identifying. but, if it does that, it does that in acce with congress's intentndishes because even my friend agrees that there are cerin

delegations that congress can make to agencies and certain gap-filling that agencies can do is kind of fundenl flaw. gorgeous -- gorsuch: it is in favor of the immigrant, in favor of the veteran andhe social security applicant, but because of a fictionalized statement congreswaed when it did not think about the problem, the government always wins. general prelogar: there are couple of different ways to commit t ccern. it discretion the court with think something is fair and for the gap in that way, but rather the core things that actually the reason it is fair is because congress okto this. i can determine a based on l of the tools. justice gorsuch: it does not

maerhether congress actually thought about it, and that there are many instanc wre congress did not think about it. and in every onef ose chevron's exploited against the individual and in favor of the government. generaprogar: i do not think its fair to treat that as an exoition. congress has been aware. it can change chevron at any time. it can displace if you think that is being used in a situation not warranted. ju roberts: justice kavanaugh. juste kavanaugh: i think the the basic analytical concern at the heart of chevron is that it treats law as policy. and if that is antithetical to our constitution se lef law. and that is why the footnote ni qstion is so important. because if you use the tritnal tools in a nonagency case and got an anerhat suggests it is a statutory interpretaonuestion.

d you are saying, no, you can stopho of that in an agency case in some difficult to find -- define pot d treat the rest of the case as a poli call for the executive branch. anthat is treating what was a law question in an nonagen case as a policy question in an agency case, and it is the same question. so it is transforming law into policy. and that is very difficult, i$2 think, to accept, if you acct the idea that a premise of the rule of law is that the executive and the judiciary cannot just treat the laws passed by congress as mere expressions of policies that they can change. respond to that. general prelog: i hear that ncern. i think the way to address that is to readesthe principal in footnote nine. we agree that is an important principle. and to the extent there are agencies or lower courts that are effectively not giving the

effect to congress's own enactments then a court can police that and put into affects analysis. that is the ki oinstruction the court gave in kaiser. justice kavanaugh, i think it' t a different question in the agency context and nagency context. what i understand chevron to be doing is figure out a congress spoke to this issue. and if so, implement it. but hold open the possibility congress did not speak to the issue. and in that context, if congress has given the agency this primary, critically important ro to administer the statute, that should give deference if the agency stays withith bounds congress set. in anogency case you don't have the agency to relying on. you might end up thinking ngss did not precisely speak bue best that i can do to figure out how congress would havrelved it or what is the interpretation most consistent with the overall statutory scheme here?

the right way to resolve th case, congress would know that ur are going to have to do that in a context without an agency. it is still following the terms t statute. i think it would be a fiction to ggt that what the court is doing there is following ress on explicit expression of the matter. justice kavanaugh are -- kavanaugh: i think it is imrtt to distinguish statues that involve legal questions of statutory interpretation. there are tons ostues, let's go back to the a.i. example, that explicitly confer broad poli dcretion on agencies. that is where state farm kicks in. and that is where we have always be deferential. general prelogar: correct. justice kav: you acknowledge those e o different kinds of statutes. one statute thatayr example no one can catch more than 50 fish today. the next statute is basically the agency can define what a

reasonable number of fish that can be caught in a reasonable day. the cond statute confers broad policy discretion. do you agree those are distinct? general prelogar: i think that one is a clear bestowal of discretion on the agency. i think it shows congress can legislate in viety of ways. justic kavanaugh: so you agree congress can legisteroad policy discretion to an agency or grant explicitly through words like reasonable, appropriate? general elar: absolutely. i ink the same question and sometimes come up in those context. congress has had to borrow from the chief justice's example, reas tckengths, there isn't an agency interpretation. the court gng to have to do that is actually meaning to a zone of discretion. ice kavanaugh: that is the state farm question as i would two more questions, i want to make sure the concerns of the

other side get a chance to respond. some of this would be taking power and grant to get to the judiciary. eris aifferent conceptio of chevron that itaking power from congress and shifting it to the executive and allow unilaterally make policy without congress. and one of the concerns historically from the beginning of this country was unchecked executive power. and you hear presidents criticized all the time, whether its osevelt, reagan, bush or obama, criticized for exercising unchecked power. e ncern is about chevron ushering in aggressive assertions of unilateral executive power. an is the concern that i think the other side has. not about the judiciary taking power, but t jiciary having taking it from congress and shifted it to the executive contraryo r usual concerns. general prelogar:/m i dage

with the characteriziothat chevron permits and congress is powerless to do anything. in the first instance congresseo the agency and the court can enforce that, and so congress knows to speak piely -- capaciously whent nts to bestow discretion, to speak plainly it wants to rain an agency in and resolve iue itself. congress can change the ruleof deference that apply in any context. there have been particular schemes where congress has said deference does not exist. do not apply or defer to this agency and not this other agency. congress is realthe driver seat here. justice kavanaugh: this is a technical point. most presidents would veto or get rid of the chevron deference. that's the technical points. last question, which is there was talk about democratillyanes i want to get your agreement on something that i think you will agree on, the role of the judiciary historically uer

constitution to police the line between the legislature and the executive to make sure that the execivis not operating as a king and is not opatg outside the bounds of the authority granted to them by the legislature. you age that is a proper judicial role? generaprogar: i agree wit that, but i think chevron consistent with that. the court polices the executi at that one by ensuring congress his own chceare put to if further polices the executive step two as the court said in kaiser, reasonableness is a test th agency can bail. -- can■ fail. there is work to be done to make sure the agency doesn't transgress some outer boundary line that congress set. justice roberts: justice jackson. justice jackscking up

where justice kavanaugh left off, that's in trt have to not only police the other branches, but itself as well? by that i mean to the extent at the other side raises the concern that, you know, they are treating law as policy. isn't therncern that policy questions might be treated as law and that what chevron is doing is also helping the court to police its own general prelogar: yes. ani think a way to illustrate is to think about a delegation li t deceptive practess if treere a statue this --tatute that said that, of course the cou cldn't come in and say the secretary said what is a defective practice? i think there is a better way to think about the concept of what is deceptive. therefore, i am not going to override what the agency is done or not give any weight to it. congress has directed what you shld do as a court is paying attention to what the secretar did. the secretary was given that role in administration. obviously chevron applies to circumstances that delegation is to identify the same basic idea

where i think the courts rule -- justice jackson: why isn't swh , which is really make congress a that? in other words, it seems to me their argument is e are policing this line between what is law and what is poly should require congress to say the secretary gets to make this deci and when it doesn't, i guess we look at it as a legal question that the court can decide? general prelogar: i think that argument would have more merit there weren't much water under the bridge in the fact that the court expin when or what identify this kind of delegati 4years ago. petitioners taedbout the reliance intes year and tried to diminish them. they did not talk about congress's own interests a reliance on chevron. i think at this juncture, to say ate argoing to switch to default and make congress a discretion is in part would be to run to the detriment of congress's own reasonable pectations with respect to drafting. it also do n account for the category

language congress is using is infused with discretion. they agreed to terms like reasonable, appropriate, necessary. those are terms that require greater application to fill in the details. you cannot interpret them in a vacuum. so i don't understand how this idea of ki congress say it could function in that kind of world. and in the final thing is congress has said something very poant here, the agency shall administer the statue with regulations or adjudicationsrtfs -- statute as well. justice jackson: you think that really carries a lot? i've heard you focus on that many teshen you are talking about a situation in which deference shlde required. general prelogar: exactly, congress in each and every statue w applicable or chevron deference will be available is going to have made that judgment in the statute to ge e agency that responsibility and role in implementing the statute. justice jackson: let me just ask

abouher or not going to the issue of ambiguity, which has come up many times, whether or not the court could clarify when there is a gap or ambiguity that allows for or requires the courtoo to step two? and what im inking about is previously with your friend on the other side, whicisome scholars have actually identified different kinds of so in one scenario we have a statute that ubroad term range of reasonable gs. there are three or four different yshat could be reasonably, you know, the meaning of stationy urce, for example. but then there is also the kind of ambiguity in which a statu can mean only one thing, either letter a or b perhaps as of the way language is put rwd in the statute. it is just unclear.

whether it means a or b. i take the scholars to mean that rely in the former scenario is the one in which we have a situation where chevron deference would be requid. couly something like that? let me clarify, at it as that is reducing to a policy choice. that once we are in the world of finding the f ambiguity where there are a number of reasonable alternatives in terms of making this determination, then it is just going to be a policy choice as to which one ngress wanted in some sense or ic general prelogar: so i think there certainly this court could provide mo gdance to lower courts. and in particular identify the typeoftatutory issues and might clearly ne discretion.

there are going to be some easy calls on this. the types of sittis where there might be multiple ways to implement and signalhe really is a zone of discretion and the agen suld have flexibility. my only concern with going down@ the road of saying there is some fundamental difference with respect to particular terms that might be subject to only two possible ways to be implemented isinofn endless number of statues out -- statutes t ere and all kinds of varieties. i worry that it might side o certain context where congress actually is comforblwith i the way of implementing at particular term, even if there are only two possibilities, and did in fact delegate that issue to the agency. so i wouldn't want some kind of bright line ruleo minish the urt's ability to recognize and implement that kind of delegation. thank you. stic roberts: thank you, general. mr. martinez, rebuttal? mr.artinez: thank you, your honor. first of all, i think it's really important to be very clear about what chevron does. it takes the power to say the law or what the law means. to say tt the law means t

that power away from courts and gives it to agenc ifforces agencies -- forces courts to adjudicate the ghts of individual litigants that are ifrt of them based on a version of the law that the courts themselves do not believe is corct do not believe is the best inrpretation. nehecongress nor this court can create a doctrine for -- or legislative statute that effectuates that reallocation of interpretive authority. my friend on the oeride that the purpose of chevron is to set the ground resn how the different branches of government with respect, i think the constitution says to grnd ■rules and it makes t judicial powerest with the courts, not with agencies and certainly not with congress either. i think the apreforces that. the solicitor general tries to rescue or reconceptualize chron by taking issue with our argument that under chevroif the court thinks the best

interpretation is x it will have apply y because the agency told it to. that is exactly what chevron says. itel the court that it has applied interpretation that th court itself would not cos interpretation that the court itself does not think is best. the solicitor geraalso described chevron as applying in the formulatioth ht a t, it applies that the agency didn't resolve the question, an innocuous raising. what is ally meant by that is chevron applies in cases of ambiguity. and ambiguy s always been understood as a situation er reasonable people can disagree about wt the law means. that just broadens the scope of deference. ambiguities are all over the place. courts resolve ambiguiesll the time, that is core tth interpretive function. there is no reason to think just because congress is accidentally left an ambiguity in the statute that what it is trying to do is

have it resolved by policy decisions made by an agency. justice barrett asked about the justification of chevr rher thinnt justification is valid? i took my friend to concede th delegation is fictional. but nonetheless to say we should apply it anyway as a of the intentional delegation theory after you have conceded ifictional. the only reason it has weighis if it is actually what congress wanted to do. if congress did not wanto delegate it, then we should not be reconptlizing how we think about statutory inrptation based on a fictional premise. he tre is no reason to think congress actually wanted to delegate policymaking authority to agencies to resolve a ambiguity that arises in any i think the vement solutions to clear statement requirement on congress. hey, you c jt legislate more

eay. ambiguities are unintentional. i do not think that works. i think that would impose a massive clarityhais unjustified. i think the precedents made very clear they were talking about remedies in those cases that expressly y we were interpreting these legal issues in a different context where we wereotimited by the limits on mandamus remedies we would apply our best and independent judgment. the solicitor generaisooking at text that requires us to interpret statutorprisions. and is saying that rule provisions and is consistent with chevron she describes as allocating interpretive authority t agencies. the statutesay courts get the interpretation. chevron says agencies get interpti authority and not court. these are inconsistent. finally with respect to the ur correction ideal or the

amended approach, i would respectfully suggest that you have tried to mend this d course correct over and over. that is why we have a chevron dorine. it is overlaid with a lot of bells and whistles. it is very hard to apply in practice. i think in the real world if you try md without ending it you are going to put a lot of pressure on the major question ctne. ople will be coming to this court every become to the court every three or four years after you to adopt a new limitation, a new caveat. we would suggest the solution here is to recognize the fundamental problem is chevron itself■]■ interpretive authority belongs to the courts. ■s

switzerland, about 35 minutes.